Senn v. State
| Decision Date | 26 April 2002 |
| Docket Number | No. 03A01-0110-PC-387.,03A01-0110-PC-387. |
| Citation | 766 N.E.2d 1190 |
| Parties | Francis A. SENN, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Katharine C. Liell, Stacy R. Uliana, Liell & McNeil Attorneys PC, Bloomington, IN, Attorneys for Appellant.
Steve Carter, Attorney General of Indiana, Ellen H. Meilaender, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Appellant-Defendant, Francis Senn (Senn), appeals the trial court's denial of his Motion to Correct Erroneous Sentence.
We affirm in part, reverse in part, and remand.1
Senn raises five issues on appeal, which we consolidate and restate as follows:
1. Whether the trial court erred by not giving him credit time for his time served in jail.
2. Whether the trial court erred by not crediting his sentence with time served on home detention.
3. Whether the trial court erred by not crediting his sentence with credit time and time served on work release.
On May 11, 1993, the State filed informations against Senn, charging him with Count I, criminal recklessness, a Class D felony, Ind.Code § 35-42-2-2; Count II, intimidation, a Class C felony, I.C. § 35-43-2-1; and Count III, public intoxication, a Class B misdemeanor, I.C. § 7.1-5-1-3. On October 29, 1993, Senn plead guilty to Count II, intimidation, and was committed to the Indiana Department of Correction for a period of eight (8) years, with six (6) years suspended to be served on probation.
On February 10, 1995, while on probation and after Senn had served his time with the Indiana Department of Correction, the State filed a Petition to Revoke Probation. Senn admitted to violating the terms of his probation. On April 5, 1995, the trial court extended Senn's probation and placed him on probation for six (6) years beginning April 5, 1995. Further, the trial court ordered the first nine (9) months of probation to be served on work release and the next six (6) months to be served on home detention. The trial court noted that Senn "receives fifty-three (53) days credit." (Appellant's App. p. 72). According to Bartholomew County Community Corrections, Senn completed 217 days of work release, April 6, 1995—November 8, 1995. Senn also completed seventy-nine (79) days of home detention, November 9, 1995—January 26, 1996.
On January 14, 1999, the State filed another Petition to Revoke Probation. On May 3, 1999, the trial court ordered Senn to be held in the Bartholomew County Jail without bond until his initial hearing. On August 30, 1999, Senn filed a Motion for Release from Incarceration and for Placement on House Arrest Program. On November 18, 1999, Senn admitted to violating the terms of his probation. That same day, the trial court ordered Senn to be (Appellant's App. p. 141). According to the Bartholomew County Community Corrections, Senn completed 315 days of home detention, November 19, 1999—September 28, 2000.
On March 15, 2001, the State filed a Petition to Revoke Probation/Community Corrections. On March 27, 2001, Senn admitted to violating the terms of his probation. That same day, the trial court ordered that Senn be "remanded to the custody of the Bartholomew County Sheriff pending the disposition in this cause." (Appellant's App. p. 163). On May 3, 2001, the trial court found that Senn violated the terms of his probation. The trial court ordered Senn's (Appellant's App. p. 175).
On June 15, 2001, Senn filed his Motion to Correct Erroneous Sentence. In his motion, Senn stated:
As a result of probation violations, Senn served two hundred and seventy-three (273) days in the Bartholomew County Jail, two hundred and seventeen (217) days on work release as a condition of probation, seventy-nine (79) days on home detention as a condition of probation, and three hundred and fifteen days (315) on home detention as a condition of pretrial release.
(Appellant's App. p. 186). With this in mind, Senn argued that pursuant to I.C. § 35-50-6-3, he was owed 546 days of credit for the 273 days he served in the Bartholomew County Jail. He also argued that he was owed 79 days of credit for his time served on home detention as a condition of probation. Senn maintained that he was owed 315 days of credit for his time served on home detention as a condition of pretrial release. Further, he contended that he was owed 434 days of credit for the 217 days he served on work release as a condition of probation. Alternatively, Senn argued that he was, at least, entitled to 217 days of credit for his time served on work release as a condition of probation.
On September 4, 2001, a hearing was held on Senn's Motion to Correct Erroneous Sentence. Regarding Senn's argument that he was owed 546 days of credit for the 273 days he served in the Bartholomew County Jail, the following exchange took place between the trial court, the State and Senn's counsel:
(Appellant's App. pp. 246-247). The trial court took the matter under advisement. On September 18, 2001, the trial court denied Senn's Motion to Correct Erroneous Sentence.
Senn now appeals.
Senn argues that the trial court erred in denying his Motion to Correct Erroneous Sentence. In Mitchell v. State, 726 N.E.2d 1228, 1243 (Ind.2000), reh'g denied, our supreme court held that "a motion to correct sentence is appropriate where the sentence is erroneous on its face and that facial error occurs when the sentence violates express statutory authority." Additionally, our supreme court held that a Id. (citation omitted). Moreover, this court held that a Watkins v. State, 588 N.E.2d 1342, 1344 (Ind.Ct.App. 1992) (citation omitted).
Senn argues that he was owed 546 days of credit for the 273 days he served in the Bartholomew County Jail. I.C. § 35-50-6-4(a) provides: "A person imprisoned for a crime or imprisoned awaiting trial or sentencing is initially assigned to Class I." Furthermore, I.C. § 35-50-6-3(a) provides: "A person assigned to Class I earns one (1) day of credit time for each day he is imprisoned for a crime or confined awaiting trial or sentencing." Because presentence jail time credit is a matter of statutory right, a trial court generally does not have discretion in awarding or denying such credit. Molden v. State, 750 N.E.2d 448, 449 (Ind. Ct.App.2001),reh'g denied.
The State agrees that a defendant is entitled to credit time2 for the days on which he was incarcerated awaiting trial or sentencing. Moreover, the State does not dispute that Senn should receive credit time, as well as credit for time served. However, the State argues that:
the trial court did not deny Defendant that credit time. The trial court agreed that Defendant was entitled to that credit time, but stated that the Department of Correction always doubles the number of days credited on the abstract of judgment to arrive at the actual amount of time credited against the sentence.
(Appellee's Brief p. 6). We recognize that the trial court stated that the Indiana Department of Correction calculates the number of days to which a defendant is entitled. We also recognize that Senn's counsel agreed with the trial court's interpretation of Senn's time served and credit time. Nonetheless, as stated above, this is not a discretionary matter. See Molden, 750 N.E.2d at 449
. Therefore, if a mistake in Senn's credit time or time served is apparent, it is our duty to correct that mistake. See Watkins, 588 N.E.2d at 1344.
On March 29, 2001, the Bartholomew County Court Services Department filed a sentencing recommendation to the trial court. In its recommendation, the Bartholomew County Court Services Department stated, in pertinent part, as follows:
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